I concur in the result reached in the above opinion, but not in the reason therein stated. My concurrence in the result is impelled entirely by my conclusion upon the sole point argued by counsel here and in trial court, namely, whether under section 5080, Revised Codes, as amended by Chapter 122 of the 1937 Session Laws, the complaint states a cause of action, assuming that in other respects actionable negligence is shown. Unless we first find that the case meets the requirements of the statute we do not reach the question of negligence.
The section as amended provides that "before any city or town * * * shall be liable for damages" for accidental injury "suffered by reason of any defect or obstruction" in street, park, etc., "it must first be shown that said city or town hadactual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received * * *." The provision completely covers the field in question, and constitutes an enactment that unless actual notice, not constructive or substituted notice, is had, the city shall not be liable.
Only one exception is made; and that is by the proviso excepting from the effect of the statute cases in which the injury arose from "failure to properly place signs, markers or signals" to give warning of excavations and obstructions "caused by said city or town, * * *." The proviso relates, not to all cases in which the excavation or obstruction was caused by the city, but only to such cases in which the city also failed to give warning by means of "signs, markers or signals." It would seem, however, that in all cases in which the excavation or obstruction was caused by the city, it necessarily had actualnotice thereof. Thus, if the excavation was caused by the city, it would seem to be liable either under the main clause or the proviso, since it would have "actual notice" and since it placed no "signs, markers or signals." However, it seems clear to me that the excavation was not caused by the city.
Some cases can be found which hold, not that by issuing permits *Page 259 the city receives actual notice of the excavation, but that it thereby becomes a joint actor in the making of the excavation, thus becoming a joint cause of the excavation. But it is not logically correct to say that by issuing a permit the city causes the excavation; for if words mean anything the city's issuance of the permit does not cause the excavation. The permit is merely a prerequisite, required by ordinance, to the private contractor's act of causing it, and obviously does not make the city a joint actor in the contractor's private enterprise, nor constitute a proximate cause of the excavation.
If the city were in this case liable under the statute, it must logically be because the application for and issuance of the permit gave actual notice of the excavation, and not because it made the city a joint actor and thereby made actual notice unnecessary in spite of the statute.
But the complaint affirmatively shows that no permit was sought nor issued for the excavation in question. It pleads Section 539 of Ordinance No. 1177 of the city of Billings, forbidding any person to excavate in any street or public place without first obtaining a permit and filing a bond, but providing that a yearly bond may be furnished; and also Sections 201, 202 and 203 of Ordinance No. 1162, forbidding the construction of any building without a permit therefor. It then pleads "an accepted usage, custom and method of procedure" by city employees by which upon the issuance of a building permit to anyone, excavations in streets and public places "could be carried on and done without issuance" of the written permit required by Ordinance No. 1177, "providing the work was done by a person who had filed" a yearly bond as provided by Ordinance No. 1162; and pleads the filing of such bond by one Myron C. Burt and the issuance of such building permit to one E.G. Balsam. It further pleads that by reason of those facts "the said defendant had actual notice" that Balsam or someone else would make an excavation.
Thus the plaintiff's theory is that if there is liability it is on the ground that the city had actual notice of the excavation because *Page 260 of the issuance of the building permit; and that the building permit gave it such notice, in spite of the requirement of a special excavation permit, because the city employees had adopted "an accepted usage, custom and method of procedure" contrary to the ordinance. The argument is that although the ordinance required a permit for such excavation, and no such permit was obtained in this instance, the building permit and the unauthorized administrative usage and custom had the same effect of actual notice as the required permit would have had. But the issuance of a building permit is notice that a building is to be constructed, not that an excavation is to be made. The argument may be made that since the residence could not be used without water connections the building permit gave notice of the excavation for that purpose; but (1) the residence might have been erected on the site of a former one for which such connection already existed, so that no excavation would be necessary; and (2) in any event the ordinance required a special permit for that purpose without exception, the legal duty was on the excavation contractor to obtain such special permit before making the excavation even though some other contractor had perhaps obtained a building permit, and the city had the right to assume that he would comply with the ordinance. Certainly the building permit gave the city no notice that an excavation would be made in violation of the ordinance, and it imposed upon the city no duty, during all the months in which the building was being constructed, to patrol the premises lest an excavation be made by someone without the required permit. Nor can the permit for the construction of a building by one contractor logically make the city a joint actor with another contractor in digging a hole, or make the city "cause" the excavation.
The situation cannot be altered by the unauthorized "usage or custom" of certain administrative employees in failing to require the permit made mandatory by the city's legislative authority. That unauthorized procedure cannot give the city actual notice, nor nullify the legislative enactments of city and state.
These things being true, it seems clear to me that since, with *Page 261 the circumstances alleged, the city did not cause the excavation, and since it had no actual notice thereof prior to the accident, the statute made the city immune from suit for damages regardless of whether in other respects actionable negligence was alleged. Whether or not we agree with the declared legislative policy of municipal immunity is of course not material.